Bradshaw v. U.S., 97-3048

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 153 F.3d 704
• Docket Number: No. 97-3048,97-3048
• Parties: Daniel T. BRADSHAW, Sr., Appellant, v. UNITED STATES of America, Appellee.
• Decision Date: 22 October 1998

Page 704

153 F.3d 704 Daniel T. BRADSHAW, Sr., Appellant,
v.
UNITED STATES of America, Appellee. No. 97-3048. United States Court of Appeals,
Eighth Circuit. Submitted June 10, 1998.
Decided Aug. 20, 1998.
Rehearing Denied Oct. 22, 1998.

Page 705

Benicia Baker-Livorsi, St. Louis, MO, argued (Terry J. Flanagan, on the brief), for Appellant.

Edward J. Rogers, St. Louis, MO (Edward L. Dowd, Jr., on the brief), for Appellee.

Before WOLLMAN and MURPHY, Circuit Judges, and KYLE, ¹ District Judge.

WOLLMAN, Circuit Judge.

Daniel T. Bradshaw appeals from the district court's ² judgment and order denying his 28 U.S.C. § 2255 petition for postconviction relief. We affirm.

I.

In June of 1992, Douglas Scott Huber was the target of surveillance by the Drug Enforcement Administration (DEA) for suspicion of conspiracy to distribute cocaine in St. Louis, Missouri. On June 16, an undercover officer telephoned Huber and informed him that he would be traveling to St. Louis shortly thereafter with a delivery of ten kilograms of cocaine that Huber had earlier agreed to purchase. Two days later, the officer telephoned Huber again and told him that he had arrived in the city. Huber agreed to meet him at a local motel to complete the transaction.

During that same time, DEA agents observed Bradshaw and William Langendorf arrive at Huber's place of business in a Ford Bronco. Bradshaw got out of the vehicle and entered the building. Langendorf, the driver, remained outside. Shortly after Huber ended his phone call with the undercover officer, Huber and Bradshaw exited the building and departed in the Bronco with Langendorf. As the three neared their destination, Bradshaw opened the gym bag he had brought with him and removed a loaded .44 magnum revolver. Bradshaw then said, "I ain't going to need this," and wedged the gun between the driver's seat and the console.

When they arrived at the motel, Bradshaw, carrying the gym bag, and Huber got out of the Bronco and went to the room to which the undercover officer had directed Huber. The officer met them at the door and let them in. Bradshaw opened the bag and displayed $102,000 in cash. He stated that he and Huber wanted to purchase six kilograms of cocaine at that time and another four kilograms the following day. After the exchange occurred, Bradshaw and Huber were arrested.

Both Bradshaw and Huber were charged with one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and one count of carrying a firearm in relation to a drug trafficking crime in violation of 18

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U.S.C. § 924(c). The indictment of Bradshaw on the firearm count charged that he "knowingly used and carried" a firearm in violation of section 924(c)(1). Bradshaw and Huber were tried together. The jury instructions on the firearm charge, to which Bradshaw made no objection, stated:

The phrase "uses or carries a firearm" means having a firearm, or firearms, available to assist or aid in the commission of the crime alleged in Count I of the indictment.

In determining whether a defendant used or carried a firearm, you may consider all of the factors received in evidence in the case including the nature of the underlying drug trafficking crime alleged, the proximity of the defendant to the firearm in question, the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm.

The government is not required to show that the defendant actually displayed or fired the weapon. The government is required, however, to prove beyond a reasonable doubt that the firearm was in the defendant's possession or under the defendant's control at the time that a drug trafficking crime was committed.

Instruction No. 17. The jury convicted Bradshaw and Huber on both the drug conspiracy and firearm counts.

Bradshaw was sentenced to 121 months in prison for the conspiracy and a consecutive 60-month sentence on the firearm charge. His sentence also included five years of supervised release and a $100 special assessment. We affirmed his convictions on direct appeal. See United States v. Huber, 2 F.3d 304 (8th Cir.1993).

Bradshaw filed this petition seeking to have the district court vacate his conviction on the firearm charge in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). He also filed a motion for an evidentiary hearing. After reviewing the parties' records and briefs, the court denied the petition without a hearing.

II.

We review the district court's dismissal of Bradshaw's 28 U.S.C. § 2255 petition for postconviction relief de novo. See United States v. Duke, 50 F.3d 571, 576 (8th Cir.1995).

Section 924(c)(1) of Title 18 provides, in pertinent part:

Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides...